Two-timing new members of Dover school board
This controversy has been revived on the following webpages --
One thing for sure is that the defenders of the board are starting to waffle. They are no longer speaking of the "voluntary cessation" doctrine in terms of absolute certainty, but are speaking of "maybes," "possibles," and "exceptions." In any case, the voluntary cessation doctrine was never a valid argument for not repealing the ID policy in December.
Colin, you have been adding insult to injury by attacking me by name where I have been banned, Panda's Thumb. I don't think that is very ethical.
Also, it is of course very unfair that regular commenters at Panda's Thumb are free to come over here and leave comments while I cannot leave comments over there (at least not under my real name).
A recent American Enterprise Online article condemned the new members of the Dover school board -- who had campaigned on an anti-ID platform -- for missing an opportunity to possibly save legal fees for the school district. At the new school board's first meeting on Dec. 5, the board ignored a former board member's proposal to try to save legal fees by repealing the ID policy before the release of the Kitzmiller v. Dover decision, which was due in late December or early January (the decision was released on Dec. 20). Defenders of the board's inaction have argued that the school district would have been liable for the plaintiffs' attorney fees even if the judge had declared the case to be moot as a result of a repeal of the ID policy. However, this argument is contradicted by the following ruling of the US Supreme Court --
Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added)
From Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)
Hence, if Judge Jones had declared the Dover case to be moot, then according to the above ruling the plaintiffs would not have been eligible for an award of attorney fees. I possibly would have found this precedent sooner had I been able to get down to the Los Angeles County Law Library to do research.
Defenders of the board's inaction have also cited the "voluntary cessation" principle, which holds that a lawsuit is not mooted by voluntary cessation of a challenged action which could later be resumed (the "voluntary cessation" principle is also discussed in the Wikipedia article on "mootness" ). However, the syllabus of the above case, Buckhannon Board & Care Home, noted that this case was declared moot as a result of the state legislature's voluntary cessation of the challenged statute: "The state legislature then eliminated the 'self-preservation' requirement, and the District Court granted respondents’ motion to dismiss the case as moot." The state legislature did not agree to a consent decree promising to not re-instate the challenged statute, and I don't see how the legislature would have the authority to agree to such a consent decree. So obviously the voluntary cessation principle is not airtight, either in regard to the issue of mootness or the eligibility of the plaintiffs for an award of attorney fees. Maybe the courts tend to treat governmental and private defendants differently in regard to the "voluntary cessation" principle.
Here are some more thoughts about this matter --
(1) The new board would have had nothing to lose by following the former board member's proposal to try to save court costs by repealing the ID policy immediately, unless the board wanted to appeal (they did not). To me, this is the most important thing, and what makes the board`s inaction inexcusable.
(2) The new board scheduled Jan. 3 for discussion of the issue, which everyone knew would be too late to try the proposal because the decision was due in late December or early January. There were several ways that the board could have legally handled the matter before then. Pennsylvania law does not require advance notice of items that are discussed and voted on by public bodies, and the board could have scheduled a "special meeting" with short notice.
(3) Several newly elected board members indicated in mid-November that they did not want an out-of-court settlement even if they could get one -- they wanted to hear what the judge had to say in the case. See http://www.ydr.com/doverbiology/ci_3223198 This article, which is about the last meeting of the old board in November, was also my source for points #4 and #10 below.
(4) The proposal had already been presented at the mid-November meeting (the last meeting of the old board), so there had already been plenty of time to review the proposal.
(5) The fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors might have been considered to be a mitigating factor by the courts.
(6) The board`s inaction assured that the mootness question could never be considered by any court.
(7) Courts are completely unpredictable. For example, who would have imagined that the Supreme Court would approve display of the 10 Commandments on public property in one case and at the same time disapprove it in another ?
(8) The new board members had already been accused -- during the election campaigning -- of being in cahoots with the ACLU, which they strenuously denied. Yet once elected, they acted just like stooges of the ACLU.
(9) The old board could have done just as good a job of doing nothing as the new board. And even if the old board had been re-elected and decided to appeal, potential legal expenses would not have increased very much because an appeal would have been much cheaper than the district-court action.
(10) Also, as I already pointed out, Judge Jones improperly gave legal advice to the new school board when he said that the results of the board elections would not affect his decision.
Also, an article titled "The Discovery Institute really needs better Lawyers", written by an attorney, completely misrepresents the decision in Buckhannon (cited above), stating, "the court specifically upheld the palitff's entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." The exact opposite is true. Also, the American Enterprise Online article's false insinuation -- later retracted -- that one of the new board members, Bryan Rehm, was guilty of conflict-of-interest was blown way out of proportion.
There is an important update at the top of this post.
Labels: Kitzmiller v. Dover (2 of 2)